I move: "That the Bill be now read a Second Time."
This Bill is the most significant contribution to the fight against discrimination in employment since the first Employment Equality Act of 20 years ago. It fulfils our commitment to introduce broad ranging legislation to outlaw discrimination in employment on the grounds of gender, marital and family status, sexual orientation, religion, age, disability, race and membership of the travelling community. The scope of the Bill is comprehensive and deals with all employment related areas from vocational training to access to employment and employment conditions generally, including training, work experience and promotion. It draws on developments in working towards equality over the past two decades and will, when enacted, give Ireland one of the most modern equality codes in Europe.
The Bill responds to the radical change that has been taking place and continues to take place in society. Our society which until recently had adopted a relatively closed and homogeneous outlook is rapidly taking on a new open, pluralist and strongly European identity. I am very much aware that this new identity is increasingly evident in working life.
The world of work is no longer peopled predominantly by married men with full time permanent jobs. The emerging work environment includes many employment options, from part time employment to job sharing and teleworking. It is peopled by men and women, some of whom are the sole breadwinners, while others contribute, in equal measure with a partner, to the economic support of home and family. Increasingly, people with disabilities are demanding their right to a full role in economic life, including a place in this more flexible world of work. A more open approach to issues of sexual orientation, changes in family status and an increase in ethnic and religious diversity leave members of some of our minority groups more visible, and perhaps vulnerable, in the workplace. The fact that few people are guaranteed a job for life, coupled with the high levels of unemployment, means that more older people than ever before are seeking work.
In this emerging labour market, employment equality must be seen as an essential element in labour protection legislation. Discrimination is not a theoretical problem. For too many it is an unacceptable reality. Take discrimination on the grounds of age. A brief scan of the situations vacant columns in any daily newspaper provides ample evidence of outright discrimination. Labour force statistics show that older workers, once unemployed, are likely to remain unemployed for longer than their younger counterparts. The Report of the Task Force on Long-term Unemployment shows that alongside the increasing incidence of long-term unemployment among older workers, other motivational factors are at work. A study in Tallaght by Ronayne and Creedon in 1992 reported that two out of three people who were long-term unemployed and over the age of 45 expect never to get a job again. The perceptions of these individuals are confirmed by the reality. Statistics show that a man aged over 45 and two years unemployed has only one chance in ten of being re-employed.
Discrimination on the grounds of disability is unfortunately widespread. An official report, prepared for the European Commission in 1991, represented the number of people with disabilities in Ireland as 240,000, or 7 per cent of the population. The National Rehabilitation Board, together with other agencies, has been working over the years to ensure the integration of people with disabilities into employment. An EC labour force survey in 1989 indicated that "the chances of someone with a disability being unemployed are significantly higher than someone without a disability".
It is a common truth that success in today's internationally competitive business environment involves utilising the talents of all employees, without regard to ability-neutral characteristics such as sex, disability or sexual orientation. Employers and managers who overlook able employees because of traditional prejudices are guilty both of injustice and waste in deploying the human resources available to them. They may even jeopardise the viability of their enterprise, because there is nothing more certain than that there are other enterprises which have succeeded in tapping the energies and abilities of their employees. I am convinced that we must relinquish outmoded preferences that perpetuate narrow discriminatory practices if our society is to prosper in the emerging economic pluralism and if we are to work towards true social equity.
Apart from any economic imperative there is an obligation on all of us, Government, employers and trade unions, to work towards the development of social justice. Equality is a fundamental human right, which is especially important in the economic sphere. Individuals in society have a basic right to seek and secure gainful employment and to advance in that employment without being discriminated against because of personal characteristics unconnected with work performance.
Discrimination in employment often weighs disproportionately on those who are already marginalised in our society, such as members of the travelling community, older people and people with disabilities. Employment equality legislation is one essential tool to help redress disadvantage. In addition, non-legislative measures, both State-sponsored and voluntary, also have a role. Reviews of progress to date in relation to gender equality illustrate the limitations, as well as the importance, of legislative action.
Employment equality legislation for women has been on the Statute Book for 20 years. In the summer of 1974 the then Minister for Labour, Michael O'Leary, presented the first employment equality legislation ever before this House. Opening the Second Stage debate, he stated that "much needs to be done to improve the status of women in employment". It is disquieting to note that, despite some significant achievements in the intervening 20 years, this statement is also true today. The position of women has advanced, but substantial equality in employment for the vast majority of women remains an elusive goal.
There has been progress. In 1974 two women Senators contributed to the debate on that first employment equality legislation. One of them, Mary Robinson, is today President of Ireland and the other, Evelyn Owens, holds the chair of the Labour Court. Both positions would have been regarded clearly as men's jobs 20 years ago. Attitudes in Ireland have progressed but we need still more progress.
Across the EU today women earn substantially less than men. In Ireland the average hourly earnings of women who work in manufacturing industry are only 70 per cent of those earned by their male counterparts. The situation outside manufacturing is not much better. An ESRI study published in 1994 entitled "Male-Female Wage Differentials: Analysis and Policy Issues" examined the earnings of men and women workers in all sectors. The study found that women's earnings were only 80 per cent of those of men. The study also found that half of the 20 per cent difference could be attributed to factors such as skill, hours worked, length of service and experience. It is quite likely that the remaining 10 per cent of the discrepancy is the result of pay discrimination.
Like other European countries, Ireland has experienced a strong increase in labour market growth. Employment in Ireland has grown by 8.5 per cent in the period 1991 to 1995. The increase in female employment has been even higher, of the order of 20 per cent. There are more jobs for women, but growth in jobs has been concentrated in low paid, part-time and other atypical work and it is to these jobs that many of the new entrants to the workforce, primarily women, are recruited. So far as gender equality is concerned, we are at a crossroads. The days are long past when it is socially or politically acceptable to justify unequal treatment by reference to differences in biological or social function. Acceptance of the principle of equality, however, does not appear to have been matched with practical action to achieve it.
I know from meeting the two sides of industry, employers and trade unions, whether in the public or private sectors, that there is support for the principle of employment equality. In almost all cases, these organisations fall short of achieving equality of opportunities in practice. There is need for continued vigilance by women, their representative organisations, employers and State agencies to ensure that acceptance of the principle of equality is matched by a real will to eliminate discrimination.
The number of women in key decision-making roles in our public and private organisations is conspicuously low. Women are under-represented at board level in our major manufacturing and industrial concerns and on the boards of our service and financial institutions. Below boardroom level, the world of work is segregated both vertically and horizontally with men occupying the majority of management, professional and supervisory positions and women by and large responsible for the delivery of routine clerical and support services. Women are also segregated in the low paid sectors of the economy such as the clothing, assembly and services sectors.
We all know that the issues involved in the development of full gender equality at work are complex and, like most complex issues, can only be addressed over time and in response to a broad-based programme. For my part, I have taken steps to facilitate the reconciliation of work and family life through the Maternity Protection Act, 1994 and the Adoptive Leave Act, 1995. I have supported adoption of the Directive on Parental Leave at EU level. The transposition into Irish law of this directive can be expected greatly to ease the child rearing burden for many new working parents. Allied to these developments, facilities for child care support for working parents are being promoted through a pilot scheme for disadvantaged areas funded by my Department.
To broaden the decision making role of women, I have moved to ensure an increase in the number of women on State boards. In 1992 only 15 per cent of positions on State boards were held by women. In 1993 the Government, on my proposal, decided to work towards a target of a minimum 40 per cent representation level for women on State boards. By July last 26 per cent of all members of State boards were women.
Trade unions and employer interests have a serious obligation to assist in the achievement of gender equality in the workplace. It would be good if employers seized the occasion of this Bill to audit their workplaces and put in place targets to ensure the removal of any remaining barriers to equal opportunities. I hope that some employers will take the opportunity afforded for the first time by this Bill to introduce schemes of positive action, geared to help eliminate existing inequalities that may affect their employees of either sex. Trade unions must intensify efforts to help women, collectively and individually, to achieve equal pay and equal treatment. I am confident this Bill will give the issue of equality in the workplace a considerably greater profile and, following its enactment, I look forward to an increasingly active role being taken by more and more individual women in defending and advancing their own interests and rights in the workplace, either in the trade union movement or in other ways.
In developing this Bill to cover the new discriminatory grounds, I have had regard to the individual rights-based approach in existing gender employment equality legislation. I have also taken note of UK racial equality legislation and the various approaches adopted to deal with discrimination in other EU member states, in Australia and in the United States. The Australian model, in particular, has proved a fruitful source of inspiration.
In contrast, the gender equality provisions in Part III of the Bill have been tightly drawn in accordance with the requirements of EU law. The Bill transposes into Irish law the Equal Pay and Equal Treatment Directives, following repeal in the Bill of the substantive provisions of the 1974 and 1977 equality Acts. The Bill also meets Irish obligations with regard to equal pay under Article 119 of the Treaty of Rome and builds on the substantial body of case law that has been handed down by the European Court of Justice in the past 20 years.
I would now like to outline to the House some of the main features of the Bill. The Bill is divided into six parts as follows: Part I contains standard and technical provisions; Part II sets out the prohibited discriminatory grounds and establishes the scope of the Bill; Part III deals with discrimination on ground of gender and gives effect to EU law in this area; Part IV deals with discrimination on grounds other than gender, namely marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community; Part V provides means of redress and compensation for persons who may have suffered discrimination; Part VI gives new powers to the Equality Authority which will replace the present Employment Equality Agency.
Part I of the Bill, comprising sections 1 to 5, provides for the powers to make orders and regulations in section 3, a provision in relation to expenses in section 4, repeal of the Anti-Discrimination (Pay) Act, 1974, and the substantive provisions of the Employment Equality Act, 1977 in section 5.
Section 2 contains the necessary definitions. Some definitions which should be noted are the definition of advertisement which includes every form of advertisement whether to the public or not and whether in a newspaper or any other publication, on television or radio or by display of a notice or by any other means; the definition of contract of employment which covers all employees in both the public and private sectors as well workers employed through employment agencies — this broad definition of contract of employment is in line with that contained in recent labour legislation. Other definitions are the definition of disability which is broad enough to give protection from discrimination to all people with a disability; the definition of family status which encompasses both care of the elderly and child care responsibilities; the definition of remuneration which includes any consideration in cash or in kind which an employee receives, directly or indirectly, from the employer in respect of employment. Pension rights are excluded from this provision and my colleague, the Minister for Social Welfare, will bring forward any legislation necessary to ensure discharge of our obligations under Article 119 of the Treaty of the European Community and the various equality directives, including the Equal Pay Directive. I understand he will deal also with equal treatment in pensions on a wide range of other grounds in an amendment to the Pensions Act. 1990.
Part II comprises sections 6 to 17 of the Bill. Section 6 sets out the grounds on which discrimination is prohibited in the Bill. They are gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. The scope of the Bill is also established in this Part. Section 8 outlaws discrimination in relation to access to employment, conditions of employment, training or experience, promotion or regarding or classification of posts. Section 10 prohibits the publication or display of discriminatory job advertisements. Section 11 prohibits discrimination by employment agencies. Section 12 prohibits discrimination by providers of vocational training. Section 13 prohibits discrimination by trade unions, employer organisations, professional bodies, trade associations and by any body which controls entry to or the carrying on of a profession, vocation or occupation. The procurement or attempted procurement of discrimination is prohibited by section 14. The extent of the liability of an employer or any other person for actions of employees and other agents is set out in section 15.
Other provisions in this part are the definition of like work; general exclusions form the provisions of the Bill where a person is unwilling, unsuitable or unable to perform the duties of the post in section 16, and where acts are done in compliance with statutory requirements in section 17, and the making null and void of provisions in collective agreements that are discriminatory in section 9.
Part III, comprising sections 18 to 27, deals with discrimination on the gender ground and gives effect to EU law in this area. Sections 19 and 20 provide an entitlement to men and women to equal remuneration in respect of like work where both are employed by the same or an associated employer. Discrimination in relation to other conditions of employment are prohibited in sections 21 and 22 of the Bill. Section 23 contains a definition of sexual harassment and explicitly provides that sexual harassment amounts to discrimination. Section 24 allows for positive action to eliminate the effects of past discrimination. It is a broadly couched provision and may be interpreted to include all forms of positive action, subject only to any limitation imposed by European Court of Justice case law.
Sections 25 to 27 allow exemptions from the principle of equal treatment. These exemptions include an exemption for the purposes of authenticity in entertainment; an exemption for certain jobs abroad; an exemption for special advantageous treatment of women in connection with pregnancy, maternity and adoption; an exemption for personal services, such as for the care of an elderly or incapacitated person. There are limited exemptions for the Garda Síochána and the prison service for purposes related to privacy and decency; the control of individuals and riot situations; and for gender-based height requirements.
Part IV, consisting of sections 28 to 37, prohibits discrimination on any of the following grounds — marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. Sections 29 to 31 provide for equal pay for like work and for the prohibition of discrimination in relation to other conditions of employment. Section 32 outlaws harassment in employment, on the basis of each of the discriminatory grounds set out in this Part. Section 33 allows positive action in favour of people with disabilities, people above the age of 50 and members of the travelling community.
Section 34 allows for the retention by employees of certain family and seniority-related benefits that would otherwise be made unlawful under the Bill. It allows for the continued fixing of retirement ages and for the phasing out of agerelated pay. The section also permits the setting of a maximum retirement age, on training-related cost grounds, and for an exemption from the terms of the Bill where there is clear actuarial or other evidence of significantly increased costs for the employer.
Section 35 is focused primarily to require an employer to make special provision for a person with a disability, unless it can be shown that such provision would cause the employer undue hardship. Section 36 allows for the continued application of residency, citizenship and Irish language proficiency requirements in the public service and establishes criteria for the setting of educational and other qualifications.
Section 37 allows exemptions from the principle of equal treatment. The exemptions include exemptions for religious, educational and medical institutions run by religious bodies; an exemption for the purposes of authenticity in entertainment; an exemption for jobs in circumstances abroad where people of a particular religion could not reasonably be expected to operate effectively; an exemption for employment in a private household; and an exemption for the security forces on the age and disability ground.
Part V, consisting of sections 38 to 68, deals with procedures for resolving disputes in relation to entitlements under the Bill. In an effort to assist in the speedy and informal resolution of disputes, section 42 allows for binding mediation where the Director of Equality Investigations or the Labour Court considers that the dispute could be resolved in this way and the parties to the dispute do not object to such a course of action.
Section 41 provides that a person who considers that she or he has been discriminated against, victimised or has not received equal remuneration may in the first instance refer the matter to the Director of Equality Investigations, with provision for an appeal to the Labour Court. In the case of a dismissal, the case would be referred directly to the Labour Court, with provision for an appeal to the Circuit Court (sections 41 and 54). Where a case is referred to the director of Equality Investigations or the Labour Court, the director or the court may, in accordance with section 46, make an order for equal remuneration or equal treatment. In addition, the director or the court may order an employer to pay up to three years' arrears of remuneration or to order compensation for other acts of discrimination or victimisation up to a maximum of 104 weeks' remuneration. In a case where the person concerned was not in receipt of remuneration, there is provision for an order for compensation up to a maximum of £10,000. In a case involving the dismissal of an employee, the Labour Court may also order reinstatement or re-engagement of the employee, if that is considered appropriate.
Arising from recent European Court of Justice case law, I have provided means of redress without limit on the amount of compensation in gender equality cases. A person who may have been discriminated against on this ground may opt to seek redress through the Circuit Court. In such a case, the only limit on the amount of compensation or arrears of remuneration which may be ordered, is a six-years' time limit on the backdating of any compensation or arrears of remuneration — section 46(3). This limit on backdating is the maximum such limit enshrined in the generally applicable Statute of Limitations.
Sections 40 and 45 provide a right to seek information for all persons who may have been discriminated against and set out the consequences for an employer of failure to supply such information.
Sections 58 to 61 give strong investigative powers to the Director of Equality Investigations and to the Labour Court to enter premises, to obtain relevant information, through interview or otherwise, and to ensure the imposition of sanctions in the event of failure or refusal by persons to co-operate with an investigation.
Under section 49, the Equality Authority is empowered to refer disputes to the Director of Equality Investigations. The Authority has the sole right to initiate proceedings in cases of discriminatory advertisements, including power to seek an injunction to prevent the filling of a job advertised in a discriminatory manner. The Authority may also refer a case to the Director of Equality Investigations on behalf of an individual where it would not be reasonable to expect an individual to refer the case, for example because of its complexity or because of the individual's fear of victimisation. The Authority may also seek an injunction in respect of persistent discrimination.
Sections 50 and 51 empower the Authority, or a person affected by a collective agreement, to refer the agreement to the Director of Equality Investigations, or on appeal to the Labour Court, where it is considered that the agreement contains a discriminatory term or does not provide for equal remuneration. The purpose of a referral or appeal under these sections will be to identify which provisions, if any, of a collective agreement are null and void, and, where appropriate, to suggest how alternative provisions might be devised.
Sections 55 to 57 allow a person who has been awarded compensation under the Bill to enforce the award through the Circuit Court, if the employer fails to take payment within a specified period. Sections 62 to 65 deal with offences under the Bill and with certain incidental provisions.
Part VI of the Bill, consisting of sections 69 to 73, is concerned with the Authority. Section 69 gives new powers to the Authority to prepare codes of practice that will have statutory recognition. Sections 70 and 71 give a new statutory role to the Authority to carry out equality reviews and devise action plans. Sections 72 and 73 contain technical amendments to the provisions in the 1977 Act in relation to the Authority necessitated by the introduction of this Bill.
I am committed to the implementation of a comprehensive programme to advance equality through a broad range of actions. The Employment Equality Bill is a central element in that programme and an essential step in the process towards the elimination of discrimination.
Deputies will have noted that some sections of the Bill are particularly complex and difficult. However, I will keep an open mind on possible constructive suggestions for improvement, bearing in mind submissions received from interest groups and others, and particularly the contributions of Deputies in the House.
I commend the Bill to the House.